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Court of AppealDismissedCivil Application No. 146 of 2020· [2021] KECA 891 (KLR)

Acton Musii Khalambukha & 1 other v Patrick Malongo Lidovolo

Court of Appeal
19 March 2021
HOHannah Okweng'uMohamed Abdulahi WarsameM. WarsameJMJ. Mohammed
1,228 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed a bid to halt a land judgment because the applicants never filed a notice of appeal before asking for a stay.

What this practically means

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Executive summary

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The applicants sought orders under Rule 5(2)(b) of the Court of Appeal Rules for an injunction and stay of execution of a judgment of the Environment and Land Court at Kakamega (Matheka, J.) delivered on 24th June 2020 in ELC No. 78 of 2017. That judgment declared the respondent the registered owner of Land Parcel No. Tiriki/Shamakhokho/1442 and ordered the applicants to vacate within 90 days, to exhume the bodies of two relatives buried on the land, and restrained them from accessing it. The applicants' application for leave to appeal out of time was pending in other applications before the Court (Civil Application No. 131 of 2020 and E26 of 2020), and the present application was intended to preserve the substratum of the intended appeal. Counsel for the applicants relied on authority that the Court exercises original and independent discretion on Rule 5(2)(b) applications and on the twin principles of arguability and nugatory appeal. The respondent opposed, contending that the application was incompetent because no notice of appeal had been filed under Rule 75. The Court agreed with the respondent: Rule 5(2)(b) jurisdiction presupposes a valid notice of appeal, without which the Court is not seized of the matter and any order would lack efficacy. The application was dismissed with costs. This is an interlocutory ruling; it does not disturb the decision of the trial court.

Key legal issues

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01

Whether the Court may grant stay of execution or injunction under Rule 5(2)(b) in the absence of a filed notice of appeal

Holding

It may not; the jurisdiction is anchored on a valid notice of appeal filed under Rule 75, and in its absence the application is incompetent and must be dismissed

Reasoning

The Court restated the twin principles for Rule 5(2)(b) applications - arguability and the nugatory-appeal test - but held that the exercise of that jurisdiction presupposes a notice of appeal lodged under Rule 75. Since none had been filed, the Court was not properly seized and the application, however meritorious the underlying grievance, had no foundation and was dismissed with costs.

p. 2

Legal principles established

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  • An application for stay or injunction under Rule 5(2)(b) of the Court of Appeal Rules can only be granted where a notice of appeal has been lodged under Rule 75; without a valid notice of appeal the Court is not seized of the matter
  • In dealing with a Rule 5(2)(b) application the Court exercises an original independent discretion, not an appellate jurisdiction, even where a similar application was made and refused in the High Court

Court orders

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  1. 1.The application under Rule 5(2)(b) is dismissed with costs
On appeal from
Environment and Land Court of Kenya at Kakamega
ELC No. 78 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Acton Musii Khalambukha & 1 other v Patrick Malongo Lidovolo", Case Analysis (2021). Civil Application No. 146 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/891/eng@2021-03-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.